Article 368: A double edged sword or a precise stiletto?

Mervin Joe Gervasis[1]

Topics Covered in this article

Introduction

InThe constitution is the basic legal framework of a country on which the whole polity of a nation is based upon. A constitution is a set of fundamental principles or established principles according to which a state or organization is governed.[2] With regard to states or nations, a constitution is the set of rules and guidelines, which define the basic foundation upon which the state is built, the procedure in which laws are made and put into practice and by whom the laws are made. Some constitutions, especially codified constitutions, also act as a leash on the state’s power, by establishing boundaries that a state or its rulers cannot defy, such as fundamental rights.

The Constitution of India was adopted by the Constituent Assembly on 26th November, 1949 and came into effect on the 26th of January, 1950.It is the longest written constitution in the world and is quite exhaustive in nature, encompassing all the spheres of governance differentiating and demarcating the powers and responsibilities of the three organs of the government- the executive, the legislature and the judiciary. Being the supreme law of the land, every law enacted by the legislature must be in conformity with the constitution of India.

The constitution of any country needs to be a dynamic document in this ever changing world. It must be capable of adapting itself to the changing needs of the times. Like an organism, a constitution to be alive must be growing. It should give ways to newer and better ideas and should change in consonance with the major changes in social and economic spheres of the country. The introductory note of the 42nd amendment[3] said that-if the obstructions and disabilities, that make the constitution unable to grow, are not removed, the constitution is bound to suffer a virtual atrophy. The question of amending the Constitution for removing the difficulties which have arisen in achieving the objective of socio-economic revolution, which would end poverty and ignorance and disease and inequality of opportunity, has been engaging the active attention of Government and the public for some years now.

Article 368 – What it holds

Constitution can be amended in various ways like- two informal ways of judicial interpretations that change the interpretation of the provisions with time and circumstances, and conventional usages that don’t visibly modify the constitutional text but underneath the surface a change in the working or operation has come about[4]. The formal method of changing any constitution is to change its language so as to adapt with the changing times[5]. Art. 368 bestow the power of constitutional amendment with the parliament. Since the constitution was created by a constituent assembly and not the parliament, it holds true that the constitution is superior to the parliament.

Also Read  Identification and Upliftment of Victims of Criminal Justice Administration System

The amendability of the Indian constitution as provided in Art. 368, has been a sticky and much debated topic since 1951. The basic debate was regarding the fundamental rights and the scope of diluting or taking them away through a constitutional amendment. Since 1951 a number of amendments have been enacted by the parliament and their overall result was the curtailment of these rights to some extent. The worst affected by these amendments is the fundamental right to property which has been amended several times. The basic motive of these amendments has been to immunize, to some extent, state interference with property rights from challenge under Arts. 14, 19 and 31 as well as to seek to exclude the question of compensation from judicial purview.[6]

Shankari Prasad Singh v. Union of India[7] was the first case that took up the matter of amendability of the constitution and the validity of the Constitution (First Amendment) Act, 1951 which curtailed the right to property. The main argument in the case was that the said amendment goes against the provisions of Art. 13 that prohibits the state from enacting any laws that would infringes the fundamental rights. The word ‘law’ in Art. 13 contains all laws, even the ones amending the constitution. Therefore, the validity of the amendment would be subject to scrutiny with reference to the fundamental rights it infringed. This caused conflict between Arts. 13 and 368 and the Supreme Court adopted the literal interpretation of the constitution and upheld the validity of the first amendment. The court, limiting the scope of Art. 13, said that the word ‘law’ in Art. 13 would not encompass a constitution amending provision passed under Art. 368. Further, the court held that the provisions of Art.368 are perfectly general and bestow the parliament with the power to amend the constitution without any exceptions.

Sajjan Singh v. State of Rajasthan[8]: After Shankari Prasad case the question of amendability remained dormant for the next 13 years. In 1964 this question was raised again and the validity of the seventeenth amendment, which severely affected the right to property, was challenged. This amendment brought a number of statutes affecting property rights into the Ninth Schedule, thus immunizing them from court reviews. The main argument was that the amendment limited the jurisdiction of the High Courts under Art. 226 and, hence, required ratification by one-half of the States under the provisions of Art. 368 to amend the entrenched provisions. The court disposed of this contention by a majority of 3 to 2. The Chief Justice (Gajendragadkar C.J.) in conveying the view of the majority and their full concurrence with the decision in the earlier case held that the words “amendment of this constitution” in article 368 plainly and unambiguously meant amendment of all the provisions of the Constitution; it would, therefore, be unreasonable to hold that the word “law” in Article 13(2) took in Constitution Amendment Acts passed under article 368. They further pointed out that, even if the authority to amend the fundamental rights were not included in article 368, Parliament could by a suitable amendment assume that authority. The dissenting judges were of the opinion that they would have difficulty in accepting the reasoning given in Shankari Prasad’s case for the relationship between Arts. 13 and 368.

Also Read  Indian law Favour Women More - Need for an Amendment

GolakNath v. State of Punjab[9] In this case, perhaps, being encouraged by the dissenting opinions in Sajjan Singh the Supreme Court again took up the matter of amendability and the amendment in question was the Seventeenth amendment. A bench of 11 judges (largest ever till then was constituted for the first time) pondered upon whether any part of the fundamental rights can be curtailed by the parliament. The court held that the Fundamental right were ‘transcendental and inviolabe’ and the Parliament had not been endowed with the power to take away or abridge these rights, but these right were subject to various restrictions expressly mentioned in the constitution.

KesavanandaBharti v. State of Kerala[10] challenged the validity of 24th, 25th, 26th and 29th constitutional amendments. The decision of the Supreme Court in the GolakNath Case has created a constitutional stalemate. The stalemate was over in this case, the Supreme Court acknowledged basic structure concept for the first time in 1973. Ever since then, the Supreme Court has been the interpreter of the Constitution and the peacemaker between the basic structure and all the amendments made by parliament. The majority of the court overruled the GolakNath case which denied parliament the power to amend fundamental rights of the citizens.

Indira Gandhi v. Raj Narain[11] reaffirmed the Basic Structure concept. The Supreme Court applied the theory of basic structure and struck down clause 4 of Art. 329-A, which was inserted by the 39th Amendment in 1975 on the grounds that it was beyond the amending power of the parliament as it destroyed the basic feature of the constitution. Four basic features Justice Y.V. Chandrachud listed four basic features which were considered unamendable: Sovereign democratic republic status, Equality of status and opportunity of an individual, Secularism and freedom of conscience and religion, ‘Government of laws and not of men’ i.e. the rule of law. 42nd Amendment After the decision of the Supreme Court in KeshvanandBharti and Indira Nehru Gandhi case declared that there shall be no limitation whatever on the constituent power of parliament to amend by way of addition, variation or repeal of the provisions of the Constitution under this Article. It was said that the theory of ‘basic structure’ as invented by the Supreme Court is vague and will create difficulties. The amendment was intended to rectify this situation.

Also Read  Deconstructing ‘Rape Culture in India’: A Study on Patriarchal Laws Enshrined in Holy Constitution

In this case of Minerva Mill v. Union of India 1980, the validity of 42nd amendment Act was challenged on the ground that they are destructive of the ‘basic structure’ of the Constitution. The Supreme Court by majority by 4 to 1 majority struck down clauses (4) and (5) of the article 368 inserted by 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the constitution. It was ruled by court that a limited amending power itself is a basic feature of the Constitution.

Conclusion

The amendability of constitution was earlier used by the parliament at its whims and fancies. But with the above landmark decisions of the apex court democracy holds true in India. A double edged sword that harmed the democracy of our country (art. 368) when coupled with judicial review and the basic structure doctrine is a precise stiletto that achieves its goals perfectly as was dreamt by the makers of our constitution.


[1] Student, Ba Ll.B. Iii Semester, National University Of Study And Research In Law, Ranchi.

[2] The New Oxford American Dictionary, (2nd ed., Oxford University Press Erin McKean, 2005).

[3] The Constitution (Forty-second Amendment) Act, 1976.

[4] M P Jain, Indian Constitutional Law 1662, (7th ed., Lexis Nexis, 2016),

[5] M P Jain, supra, 1664.

[6] M P Jain, supra, 1670.

[7] Shankari Prasad Singh v. Union of India, AIR 1951 SC 458.

[8] Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.

[9] GolakNath v. State of Punjab, AIR 1967 SC 1643.

[10] Indira Gandhi v. Raj Narain, AIR 1973 SC 1461.

[11] Minerva Mill v. Union of India, AIR 1975 SC 2299.